UNDERSTANDING YOUR LEGAL DUTY OF CARE

For Alumni & Affinity Travel Programs

Author: Charles R. Gregg, Attorney 11/30/15

The following is intended to address only general matters of law, not the laws of a particular state
or other jurisdiction. Consult an attorney familiar with your institutions travel program and laws
applicable to it.

Our subject is a trip organizers legal duty of care to persons served by it. This duty of care, generally
speaking, is to protect another from unreasonable risks of harm.

A claim against an organization for injury or disappointment most likely will include negligence
(carelessness) or breach of a contractual obligation (a promise).

The essential elements of a successful suit for negligence: 1) a duty of care was owed to the claimant; 2) that
duty was breached (violated); and 3) the breach caused a loss to person or property. Duty is the cornerstone of a
negligence claim. If no legal duty of care was owed, the suit for negligence will fail.

A judge decides if, as a matter of law, a duty of care was owed. A jury (or the judge, if she or he is the
fact finder) decides, as a matter of fact if, in the circumstances around the injury or other loss, the duty
was breached.

A legal duty of care arises from relationships and expectationssituations where protection from harm might be
anticipated and harm is foreseeable if protection is not provided.

The recent case of Munn v. The Hotchkiss School has reminded us of an important additional factor in
considering the nature of a duty of care and its breach: public policy. A legal duty of care notwithstanding, are the
interests of society best served by finding that a duty does NOT exist in a particular situation.

In Cara Munn, et al v. The Hotchkiss School (2014 U.S. Dist. LEXIS 76594) a federal court in Connecticut
awarded $41 million to Cara Munn, a 15 year old student who contracted tick borne encephalitis on a
Hotchkiss School trip to China. The jury found that the school breached its duty of care owed to Ms. Munn
by failing to warn and protect her from the risk of insect-borne illness. On appeal the school is urging,
among other arguments, that the verdict be set aside for reasons of public policy.

The value to society of a robust program of international travel and cultural exchange, the school argues,
outweighs the dangers of a failure to warn of and protect from losses of the type suffered by Ms. Munn. The
United States Court of Appeals for the Second Circuit, to which the school has appealed, has asked the Supreme
Court of Connecticut for guidance, under Connecticut law, regarding the public policy argument.

You, as a trip organizer, leader, faculty member, administrator, Board member or Trustee should assume that
you owe a duty of care to a student or other client in your charge.

Your conduct in performing that duty will be measured by the following standard: what would a reasonable
person have done under the same or similar circumstances. Note that the test is reasonablenessnot
perfection. Understand, too, that this reasonable person is a fiction. And the test of compliance is
objectivehow a person or organization acted, not what was intended.

Obligations associated with the legal of duty of care owed will vary, depending on characteristics of the
people involved in an activity, the nature of the activity, and the relationship between the participants and
the activity.

A traveler who is a minor -- particularly, it might be argued, if led by the faculty of the institution in which
he or she in enrolled is entitled to a special duty of care. The term in loco parentis, sometimes used to
describe the duty of care owed to a minor in ones custody or control, means literally that one is to deal
with that child with the same degree of care as would be shown by a reasonable parent (a parent, at least
one court has observed, who appreciates the value of risk and adventure in a childs development.) The
duty to a minor is considered by some courts to require a high or the highest duty of care: that of a
cautious, or extremely cautious, person.

Duties of care can be influenced also by federal and state laws and by court decisions. Announcements and
representations by the organization (You (your child) will safe!) can influence the duty owed. The organization
and participants can agree to reduce the duty owed, by, for example, an assumption of the risks of the trip, and a
release of claims for future losses. Legal counsel must be consulted regarding the enforceability and scope of
such agreements.

A duty of care can be shaped also by an agreement to allocate responsibilities for determining the suitability of a
participant for a trip, including health issues and strategies for treatment and care. If the participant (or parent)
agrees to investigate health and other suitability issues, to make suitability and care decisions based solely on
what he or she has learned and decided, and to protect the organizer from any claim arising from a failure to do
so, the duty of the organizer has been significantly reduced.

If, as stated above, ones legal duty of care is to protect another from unreasonable risks of harm, it may be
presumed that some risks are reasonable. Included in reasonable risks are those which are inherent --
that is, they are so much a part of the activity that, without them, the activity would lose its value and
appeal. A service provider has no legal duty to protect another from inherent risks; or, put another way, a
service provider is not liable for losses arising from them.

Another type of reasonable risk is one whose general nature cannot reasonably have been foreseen.
The Munn trial court determined that the school owed a duty of care to Munn which was not surprising.
When asked to determine if that duty was beached by Hotchkiss failure to warn Munn of and protect her
from the danger of insect borne diseases (the court uses the terms illness and disease
interchangeably, it appears) the jury said yes. Trip planners around the country were shocked, for there
was ample evidence that Munns injury - tick borne encephalitis -- was unprecedented in the area of
China visited by her school. The issue put to the jury, however, was not specific to her injury, but, rather,
was simply the schools failure to warn and protect with respect to insect-borne illnesses. The trial court
ruled that the foreseeability of the loss, for duty purposes, extends only to the general nature of the loss
actually suffered. The schools duty might have been fulfilled had it warned and protected against insect
borne illness.

The good news in the analysis of the Munn court is that, in meeting its duty to warn, an organization is not
required by law to anticipate and announce everything that possibly could go wrong. But it must,
according the Court and jury, warn and protect against foreseeable risks of the general nature of the risk
and loss incurred. (Plants and animals which might cause harm is a cautionary phrase sometimes
used in outdoor programming.)

In deciding if a duty of care was breached, a jury or other fact finder may consider laws and regulations
pertaining to the industry, and standards and prevailing practices, including the internal policies and
practices of the organization itself. Each of these sources has different implications for the duty issue. A
breach of a law which has for its purpose the prevention of the loss which occurred might, depending on
applicable state laws, be considered negligence per se. (That is, the issue of breach of duty is decided.
Period.) Breach of an industry standard, or a violation of accepted, or common, or preferred, practices,
on the other hand, is often regarded only as some evidence of negligence and can be rebutted by other
evidence. Common practices, even those reviewed and generally approved by a significant industry
segment may nevertheless be determined to be unreliable.

A prudent trip planner or leader would be well advised to research and carefully consider standards and
common practices of similar organizations as they pertain to anticipated activities, populations and
environments. A more cautious provider of services might consider the practices and policies of
professional organizations whose sole business it is to offer technical services of the type required-- for
example, mountain and other remote travel, visits to unfamiliar front country or urban environments, and
home stays. The careful planner will not be tempted by the plea of a faculty member who wishes to
finally see Rome or the Maasai Mara and is sent to Italy or East Africa with fifteen inexperienced
students in tow.

Health and travel organizations exist which specialize in various aspects of managing the risks of
international (and domestic) travel. They have particular knowledge and expertise concerning the
environmental, health and political issues of certain places, and other insights that come only with
frequent, current and intimate familiarity with a place. A case of flesh eating bacteria traced to a visit to
an obscure Central American beach might not have been preventable, but another organizer of the trip
might have inquired of local medical clinics regarding current health issues and their origin.

In planning, responsible persons should carefully weigh their own competencies (and motives), allocate
operational and legal responsibilities between staff members and independent contractors and be sure
that the local, or other, independent vendor of services has the financial resources (including insurance)
to respond to a claim of misconduct.

Equally important is a risk management plan which: identifies the risks of the venture, considers how to
reduce the frequency and severity of bad things happening, and sets up a protocol for when those bad
things DO happen (for they will, sooner or later). This latter an emergency action plan -- should address
the immediate care of the victim, stabilizing the group, summoning needed medical and evacuation
assistance (resources of such assistance having been scouted and identified beforehand), and
communication with management, local authorities and other interested persons.

In conclusion: Learn the laws, standards and prevailing practices pertinent to your planned activities,
environment and client population. Understand the risks, inherent and otherwise, which a reasonable and
informed planner might anticipate. Place risk management among the highest priorities for the trip. Your
risk management duties might be best served by transferring certain responsibilities to others. Adhere to
the standard of reasonable under the circumstances and your organization will travel, teach and play
with some confidence that the law is on your side.

Charles (Reb) Gregg is a practicing attorney in Houston, Texas, specializing in outdoor recreation matters and
general litigation. He is an active speaker and author in the field of managing the risks of legal liability.